Cornell Law Review

Article

Constitutional Rights in the Machine-Learning State

Aziz Z. Huq

Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School. 

This Article offers a start to the larger project of developing a general account of substantive rules and enforcement mechanisms to promote due process, privacy, and equality norms in the machine-learning state. Cataloging notable state and municipal adoptions of machine-learning tools, it considers how existing constitutional norms can be recalibrated (in the case of due process and equality) or retooled (in the case of privacy). It further reexamines the enforcement regime for constitutional interests in light of machine learning’s dissemination. Today, constitutional rights are (largely) enforced through discrete, individual legal actions. Machine learning’s normative implications arise from systemic design choices. The retail enforcement mechanisms that currently dominate the constitutional remedies context are therefore particularly ill fitting. Instead, a careful mix of ex ante regulation and ex post aggregate litigation, which are necessary complements, is more desirable.

Nov 2020

Article

Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter

Brian Finucane

The author serves as an attorney-adviser at the U.S. Department of State. He prepared this Article in his personal capacity, and the views expressed here do not necessarily represent the views of the Department of State or the U.S. government. 

This Article argues that by virtue of the Take Care Clause Article 2(4) of the U.N. Charter binds the President as a matter of domestic law. In substantiating this proposition, this Article relies primarily upon the arguments of the Executive Branch itself in three superficially distinct, though interrelated domains. By synthesizing Executive Branch views on war powers, the Take Care Clause, and Article 2(4), this Article shows how presidential arguments advancing claims of authority also delineate the scope of the corresponding constitutional duties. The Take Care Clause gives and takes at once. If the President is not constrained by treaties, the President also lacks the power to execute them.

I rebut a 1989 Office of Legal Counsel memorandum by now-Attorney General William Barr that concluded that the President may unilaterally “override” Article 2(4) because the treaty provision is non-self-executing and because the use of force is a “political question.” I explain that, though the political question and non-self-execution doctrines may be relevant to the justiciability of Article 2(4) in the courts, neither is dis-positive as to the status of Article 2(4) as a “Law” that the President is obligated to faithfully execute. The conclusion that Article 2(4) is a “Law” has significant implications for the allocation of war powers. Contrary to Barr’s 1989 memo, by virtue of the last-in-time rule, it is Congress—not the President—that possesses the authority to “override” this treaty provision.

Nov 2020

Article

In Defense of Breakups: Administering a “Radical” Remedy

Rory Van Loo, Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project  

 

Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that companies like Whole Foods, Instagram, and YouTube are anticompetitive. But scholars have paid insufficient attention to a separate step in the analysis that may help explain why the government in recent decades has not broken up a single large company. . . . This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies—too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable.

Nov 2020

Article

Against Prosecutors

I. Bennett Capers, Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School.

Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes. We are at a point where one in every three adults in America has a criminal record, and where for every fifteen persons born in 2001, one will likely spend time in jail or prison. Compared to other countries, the crime rate in the United States is not exceptional, and yet we have by far the highest incarceration rate in the world. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place. What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves? This Article attempts to answer these questions.

Sep 2020

Article

FRAND and Antitrust

Herbert Hovenkamp, James B. Dinan University Professor, University of Pennsylvania Law School and The Wharton School.

This Article addresses one question: when is a Standard Setting Organization (SSO) participant’s violation of a FRAND commitment an antitrust violation, and if it is, of what kind and what are the implications for remedies? It warns against two extremes. One is thinking that any violation of a FRAND commitment is an antitrust violation as well. In the first instance FRAND obligations are contractual, and most breaches of contract do not violate any antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. The question of an antitrust violation does not depend on whether the conduct breached a particular agreement but rather on whether it caused competitive harm. This can happen because the conduct restrained trade under section 1 of the Sherman Act, was unreasonably exclusionary under section 2 of the Sherman Act, or amounted to an anticompetitive condition or understanding as defined by section 3 of the Clayton Act. The end goal is to identify practices that harm competition, thereby injuring consumers.

Sep 2020

Article

Equity, Punishment, and the Company You Keep: Discerning A Disgorgement Remedy Under the Federal Securities Laws

Theresa A. Gabaldon, Lyle T. Alverson Professor of Law, The George Washington University Law School; J.D. 1978, Harvard Law School; B.S. 1975, University of Arizona.

This Article first provides background on the judicial development of the SEC disgorgement remedy, up to and through Kokesh. It then examines parallel legislative developments, touching on the fraught subject of legislative history. After describing this necessary context, the Article relies on it to illuminate a problem endemic to litigation about federal remedies. This has to do with the promiscuous use of the word “equitable,” which appears to have greatly complicated any attempt to make sense of disgorgement. The confusion resulting from a sea of unexamined assumptions about “equity” that floats throughout the relevant cases and commentary has obscured a central issue. This is the difference between whether a remedy exists—the primary subject of this Article—and whether, if it does, there are constitutional consequences. In the process of shedding light on this subject, this Article answers three specific questions. The first is whether a right to seek disgorgement could be said to exist as a function of the Commission’s express authority to seek equitable remedies. The second is whether the SEC’s right to seek disgorgement could be said to exist at law. The third, which assumes an affirmative answer to both of the first two, is which of the two characterizations is more appropriate.

Sep 2020

Article

Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law

Kevin M. Clermont, Ziff Professor of Law, Cornell University

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…

Aug 2020

Article

Lawyers’ Abuse of Technology

Cheryl B. Preston, Edwin M. Thomas Professor of Law, Emerita, J. Reuben Clark Law School, Brigham Young University

The Article is a thorough analysis of how the current scheme for regulating lawyers has failed to adapt to technology and why that failure is disastrous. It discusses (1) why technology, electronic communications, and social media require specialized attention in lawyer regulation, (2) what mechanisms can be harnessed to meet this need, and (3) the…

Jul 2020

Article

Divide & Concur: Separate Opinions & Legal Change

Thomas B. Bennett, Associate, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

Andrew D. Martin, Chancellor, Washington University in St. Louis, School of Law

Susan Navarro Smelcer, Assistant Professor of Law, Georgia State Law

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for…

Jul 2020

Article

International Cybertorts: Expanding State Accountability in Cyberspace

Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations…

Jul 2020